STEPS IN TREATY-MAKING

1. NEGOTIATION – Conducted by the parties to reach an agreement. Negotiation Bilateral treaties, and multilateral treaties
among a small number, conferences which are run like a legislative body. Power to Negotiate. The negotiators must possess
powers to negotiate. An act relating to the conclusion of a treaty by one who has no proper authorization has no legal effect
unless confirmed by his state:

Article 7. FULL POWERS

1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the
purpose of expressing the consent of the State to be bound by a treaty if:

(a) He produces appropriate full powers; or

(b) It appears from the practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full powers.

2. In virtue of their functions and without having to produce full powers, the following are considered as representing their
State:

(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts
relating to the conclusion of a treaty;

(b) Heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and
the State to which they are accredited;

(c) Representatives accredited by States to an international conference or to an international organization or one of

its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.

2. SIGNING – the signing of the text of the instrument agreed by the parties; negotiation conclude with the signing of the
document. The signatures serve as authentication of the document.

Simple signature vs. Definitive signature

When a treaty is subject to discretionary ratification after signature, the signature is referred to as a “simple
signature”; whereas a signature that indicates consent to be bound is referred to as a “definitive signature.” A
simple signature does not commit a State to ratify a treaty, let alone comply with its terms. Although a simple
signature does not make a State a party to a treaty, it can create benefits and obligations for the signatory State.
When the treaty is not subject to ratification, acceptance or approval, definitive signature establishes the consent of
the state to be bound by the treaty. Most bilateral treaties dealing with more routine and less politicized matters are
brought into force by definitive signature, without recourse to the procedure of ratification.

3. CONSENT TO BE BOUND

1. Definitive Signature – Art. 12, VCLT

Article 12. CONSENT TO BE BOUND BY A TREATY EXPRESSED BY SIGNATURE

1. The consent of a State to be bound by a treaty is expressed by the signature of its representative when:
(a) The treaty provides that signature shall have that effect;
(b) It is otherwise established that the negotiating States were agreed that signature should have that
effect; or
(c) The intention of the State to give that effect to the signature appears from the full powers of its
representative or was expressed during the negotiation.
2. For the purposes of paragraph 1 :
(a) The initialing of a text constitutes a signature of the treaty when it is established that the negotiating
States so agreed;
(b) The signature ad referendum of a treaty by a representative, if confirmed by his State, constitutes a full
signature of the treaty.

1. Exchange of instruments constituting a treaty – Art. 13, VCLT

 Article 13. CONSENT TO BE BOUND BY A TREATY EXPRESSED BY AN EXCHANGE OF INSTRUMENTS
CONSTITUTING A TREATY: The consent of States to be bound by a treaty constituted by instruments ex changed
between them is expressed by that exchange when:

(a) The instruments provide that their exchange shall have that effect; or (b) It is otherwise established
that those States were agreed that the exchange of instruments shall have that effect.

3. Acceptance and Approval – Art. 16, VCLT

Article 16. EXCHANGE OR DEPOSIT OF INSTRUMENTS OF RATIFICATION, ACCEPTANCE, APPROVAL OR

ACCESSION: Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or
accession establish the consent of a State to be bound by a treaty upon:
(a) Their exchange between the contracting States;
(b) Their deposit with the depositary; or
(c) Their notification to the contracting States or to the depositary, if so agreed.

4. Accession – Art. 15-16, VCLT

Article 15. CONSENT TO BE BOUND BY A TREATY EXPRESSED BY ACCESSION: The consent of a State to be
bound by a treaty is expressed by accession when:
(a) The treaty provides that such consent may be expressed by that State by means of accession;
(b) It is otherwise established that the negotiating States were agreed that such con sent may be expressed
by that State by means of accession; or
(c) All the parties have subsequently agreed that such consent may be expressed by that State by means of
accession.

Article 16. EXCHANGE OR DEPOSIT OF INSTRUMENTS OF RATIFICATION, ACCEPTANCE, APPROVAL OR

ACCESSION: Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession
establish the consent of a State to be bound by a treaty upon:
(a) Their exchange between the contracting States;
(b) Their deposit with the depositary; or
(c) Their notification to the contracting States or to the depositary, if so agreed.

5. Ratification – EO 459
a. Ratification in the Philippines
1. PIMENTEL V EXEC SECRETARY
2. LIM V EXEC SECRETARY

4. ENTRY INTO FORCE – Art. 24-25, VCLT

Article 24. ENTRY INTO FORCE

1. A treaty enters into force in such manner and upon such date as it may pro vide or as the negotiating
States may agree.
2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the
treaty has been established for all the negotiating States.
3. When the consent of a State to be bound by a treaty is established on a date after the treaty has come
into force, the treaty enters into force for that State on that date, unless the treaty otherwise provides. 4. The
provisions of a treaty regulating the authentication of its text, the establishment of the consent of States to be bound
by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other
matters arising necessarily before the entry into force of the treaty apply from the time of the adoption of its text.

Article 25. PROVISIONAL APPLICATION

1. A treaty or a part of a treaty is applied provisionally pending its entry into force if:
(a) The treaty itself so provides; or
(b) The negotiating States have in some other manner so agreed
2. Unless the treaty otherwise provides or the negotiating States have otherwise agreed, the provisional application
of a treaty or a part of a treaty with respect to a State shall be terminated if that State notifies the other States between which
the treaty is being applied provisionally of its intention not to become a party to the treaty.
5. REGISTRATION WITH THE UN – Art. 102 and Art 6, Charter of the United Nations
Article 102
1. Every treaty and every international agreement entered into by any Member of the United Nations after the present
Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.
2. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of
paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations.

Article 6
A Member of the United Nations which has persistently violated the Principles contained in the present Charter may
be expelled from the Organization by the General Assembly upon the recommendation of the Security Council.

Peaceful and Forcible Sanctions

a. Peaceful Sanctions (a.k.a Pacific Settlement of Dispute) – Art. 2(3) and Art. 33, UN Charter
Art. 2(3) All Members shall settle their international disputes by peaceful means in such a manner that
international peace and security, and justice, are not endangered.

Art. 33. 1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of
international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own
choice.

3. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such
means.

1. Principle of “free choice of means” for settlement disputes: Bolivia v. Chile

2. Concept of Ex Aequo et Bono – “according to the right and good” – Art. 38 (2) ICJ Statute and Art. 33,
UNICITRAL

Article 38
1. The Court, whose function is to decide in accordance with international law such disputes as
are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states ;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bond, if
the parties agree thereto.

Article 33. Correction and interpretation of award; additional award:

(1) Within thirty days of receipt of the award, unless another period of time has been agreed upon by the parties:
(a) a party, with notice to the other party, may request the arbitral tribunal to correct in the award any
errors in computation, any clerical or typographical errors or any errors of similar nature;
(b) if so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to
give an interpretation of a specific point or part of the award.
If the arbitral tribunal considers the request to be justified, it shall make the correction or give the interpretation
within thirty days of receipt of the request. The interpretation shall form part of the award.
(2) The arbitral tribunal may correct any error of the type referred to in paragraph (1)(a) of this article on its own
initiative within thirty days of the date of the award.
(3) Unless otherwise agreed by the parties, a party, with notice to the other party, may request, within thirty days of
receipt of the award, the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but
omitted from the award. If the arbitral tribunal considers the request to be justified, it shall make the additional award within
sixty days.
(4) The arbitral tribunal may extend, if necessary, the period of time within which it shall make a correction,
interpretation or an additional award under paragraph (1) or (3) of this article.
(5) The provisions of article 31 shall apply to a correction or interpretation of the award or to an additional award.
 3. Forum prorogatum “prorogated jurisdiction” That jurisdiction, which, by the consent of
the parties, is conferred upon a judge, who, without such consent, would be
incompetent.
If a State has not recognized the jurisdiction of the Court at the time when an application instituting
proceedings is filed against it, that State has the possibility of subsequently accepting such jurisdiction
to enable the Court to entertain the case: the Court thus has jurisdiction as of the date of acceptance
under the forum prorogatum rule.

B. Forcible Sanctions – Art. 2(4) and (7), 41,42 and 43, UN Charter
Art. 2(4) All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations.
(7) Nothing contained in the present Charter shall authorize the United Nations to intervene
in matters which are essentially within the domestic jurisdiction of any state or shall require
the Members to submit such matters to settlement under the present Charter; but this
principle shall not prejudice the application of enforcement measures under Chapter Vll.

Article 41. The Security Council may decide what measures not involving the use of armed force are to be employed
to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may
include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of
communication, and the severance of diplomatic relations.
Article 42. Should the Security Council consider that measures provided for in Article 41 would be inadequate or have
proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore
international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land
forces of Members of the United Nations.
Article 43.

1. All Members of the United Nations, in order to contribute to the maintenance of international peace and security,
undertake to make available to the Security Council, on its call and in accordance with a special agreement or
agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of
maintaining international peace and security.

2. Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general
location, and the nature of the facilities and assistance to be provided.
3. The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall
be concluded between the Security Council and Members or between the Security Council and groups of Members and
shall be subject to ratification by the signatory states in accordance with their respective constitutional processes

1. Right to self-defense – Art. 51, UN Charter; Art. 2, Sec. 2 and Art. VI, Sec. 23 (1)

Art. 51, Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an
armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to
maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall
be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the
Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or
restore international peace and security.
Art. 2, Sec. 2 The Philippines renounces war as an instrument of national policy, adopts the generally accepted
principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations.
Art. VI, Sec. 23 (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately,
shall have the sole power to declare the existence of a state of war.
Specialist Areas of International Law

a. The International Law of the Sea (UNCLOS)

a. Archipelagic States (Art. 46)
For the purposes of this Convention:
(a) "Archipelagic State" means a State constituted wholly by one or more archipelagos and may
include other islands;
(b) "archipelago" means a group of islands, including parts of islands, interconnecting waters and
other natural features which are so closely interrelated that such islands, waters and other natural
features form an intrinsic geographical, economic and political entity, or which historically have
been regarded as such.
1. Straight Archipelagic Baselines (Art. 47)

1. An archipelagic State may draw straight archipelagic baselines joining the outermost
points of the outermost islands and drying reefs of the archipelago provided that within
such baselines are included the main islands and an area in which the ratio of the area
of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.
2. The length of such baselines shall not exceed 100 nautical miles, except that up to 3
per cent of the total number of baselines enclosing any archipelago may exceed that
length, up to a maximum length of 125 nautical miles.
3. The drawing of such baselines shall not depart to any appreciable extent from the
general configuration of the archipelago.
4. Such baselines shall not be drawn to and from low-tide elevations, unless lighthouses
or similar installations which are permanently above sea level have been built on them
or where a low-tide elevation is situated wholly or partly at a distance not exceeding the
breadth of the territorial sea from the nearest island.
5. The system of such baselines shall not be applied by an archipelagic State in such a
manner as to cut off from the high seas or the exclusive economic zone the territorial
sea of another State.
6. If a part of the archipelagic waters of an archipelagic State lies between two parts of
an immediately adjacent neighboring State, existing rights and all other legitimate
interests which the latter State has traditionally exercised in such waters and all rights
stipulated by agreement between those States shall continue and be respected.
7. For the purpose of computing the ratio of water to land under paragraph l, land areas
may include waters lying within the fringing reefs of islands and atolls, including that
part of a steep-sided oceanic plateau which is enclosed or nearly enclosed by a chain of
limestone islands and drying reefs lying on the perimeter of the plateau.
8. The baselines drawn in accordance with this article shall be shown on charts of a scale
or scales adequate for ascertaining their position. Alternatively, lists of geographical
coordinates of points, specifying the geodetic datum, may be substituted.
9. The archipelagic State shall give due publicity to such charts or lists of geographical
coordinates and shall deposit a copy of each such chart or list with the Secretary-
General of the United Nations.

2. Archipelagic waters (Art. 49, 51, and 52)

Art. 49 Legal status of archipelagic waters, of the air space over archipelagic waters and
of their bed and subsoil
1. The sovereignty of an archipelagic State extends to the waters enclosed by the
archipelagic baselines drawn in accordance with article 47, described as archipelagic
waters, regardless of their depth or distance from the coast.
2. This sovereignty extends to the air space over the archipelagic waters, as well as to
their bed and subsoil, and the resources contained therein.
3. This sovereignty is exercised subject to this Part.
4. The regime of archipelagic sea lanes passage established in this Part shall not in other
respects affect the status of the archipelagic waters, including the sea lanes, or the
exercise by the archipelagic State of its sovereignty over such waters and their air space,
bed and subsoil, and the resources contained therein.
Art. 51 Existing agreements, traditional fishing rights and existing submarine cables
1. Without prejudice to article 49, an archipelagic State shall respect existing
agreements with other States and shall recognize traditional fishing rights and other
legitimate activities of the immediately adjacent neighboring States in certain areas
falling within archipelagic waters. The terms and conditions for the exercise of such
 rights and activities, including the nature, the extent and the areas to which they apply,
shall, at the request of any of the States concerned, be regulated by bilateral
agreements between them. Such rights shall not be transferred to or shared with third
States or their nationals.
2. An archipelagic State shall respect existing submarine cables laid by other States and
passing through its waters without making a landfall. An archipelagic State shall permit
the maintenance and replacement of such cables upon receiving due notice of their
location and the intention to repair or replace them.
Article 52 Right of innocent passage
1. Subject to article 53 and without prejudice to article 50, ships of all States enjoy the
right of innocent passage through archipelagic waters, in accordance with Part II, section
3.
2. The archipelagic State may, without discrimination in form or in fact among foreign
ships, suspend temporarily in specified areas of its archipelagic waters the innocent
passage of foreign ships if such suspension is essential for the protection of its security.
Such suspension shall take effect only after having been duly published

3. Archipelagic Sea lanes passage (Art. 53)

Right of archipelagic sea lanes passage
1. An archipelagic State may designate sea lanes and air routes thereabove, suitable for
the continuous and expeditious passage of foreign ships and aircraft through or over its
archipelagic waters and the adjacent territorial sea.
2. All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea
lanes and air routes.
3. Archipelagic sea lanes passage means the exercise in accordance with this
Convention of the rights of navigation and overflight in the normal mode solely for the
purpose of continuous, expeditious and unobstructed transit between one part of the
high seas or an exclusive economic zone and another part of the high seas or an
exclusive economic zone.
4. Such sea lanes and air routes shall traverse the archipelagic waters and the adjacent
territorial sea and shall include all normal passage routes used as routes for
international navigation or overflight through or over archipelagic waters and, within
such routes, so far as ships are concerned, all normal navigational channels, provided
that duplication of routes of similar convenience between the same entry and exit
points shall not be necessary.
5. Such sea lanes and air routes shall be defined by a series of continuous axis lines from
the entry points of passage routes to the exit points. Ships and aircraft in archipelagic
sea lanes passage shall not deviate more than 25 nautical miles to either side of such
axis lines during passage, provided that such ships and aircraft shall not navigate closer
to the coasts than 10 per cent of the distance between the nearest points on islands
bordering the sea lane.
6. An archipelagic State which designates sea lanes under this article may also prescribe
traffic separation schemes for the safe passage of ships through narrow channels in such
sea lanes.
7. An archipelagic State may, when circumstances require, after giving due publicity
thereto, substitute other sea lanes or traffic separation schemes for any sea lanes or
traffic separation schemes previously designated or prescribed by it.
8. Such sea lanes and traffic separation schemes shall conform to generally accepted
international regulations.
9. In designating or substituting sea lanes or prescribing or substituting traffic separation
schemes, an archipelagic State shall refer proposals to the competent international
organization with a view to their adoption. The organization may adopt only such sea
lanes and traffic separation schemes as may be agreed with the archipelagic State, after
which the archipelagic State may designate, prescribe or substitute them.
 10. The archipelagic State shall clearly indicate the axis of the sea lanes and the traffic
separation schemes designated or prescribed by it on charts to which due publicity shall
be given.
11. Ships in archipelagic sea lanes passage shall respect applicable sea lanes and traffic
separation schemes established in accordance with this article.
12. If an archipelagic State does not designate sea lanes or air routes, the right of
archipelagic sea lanes passage may be exercised through the routes normally used for
international navigation.

4. Regime of Islands (Art. 121)

1. An island is a naturally formed area of land, surrounded by water, which is above
water at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf of an island are determined in
accordance with the provisions of this Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life of their own shall have
no exclusive economic zone or continental shelf.

B. Internal waters
1. Except as provided in Part IV (ARCHIPELAGIC STATES), waters on the landward side of the baseline of the territorial
sea form part of the internal waters of the State. 2. Where the establishment of a straight baseline in accordance with the
method set forth in article 7 has the effect of enclosing as internal waters areas which had not previously been considered as
such, a right of innocent passage as provided in this Convention shall exist in those waters.

C. Territorial sea
1. Arigo vs Swift

D. Exclusive Economic Zone

E. Continental Shelf - The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that
extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental
margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured
where the outer edge of the continental margin does not extend up to that distance.
1. Concept and Requirements for an extended Continental Shelf (Art. 76 (8))
8. Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the
breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the
Continental Shelf set up under Annex II on the basis of equitable geographical representation. The Commission shall make
recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. The
limits of the shelf established by a coast.
a. Obligation of a party state to UNCLOS even in a case against a non-party state
Nicaragua v Colombia

2. LGU’s continental shelf – Republic vs Prov. Gov’t of Palawan

F. In the Matter of the South China Sea Arbitration – PH v. CHINA

B. International Humanitarian Law
a. R.A. 9851
b. Genocidal Intent (Dolus specialis “special deceit”)
Croatia v Serbia
C. International Environmental Law
a. Principle 21 of the Stockholm Declaration
States have, in accordance with the Charter of the United Nations and the principles of international law, the
sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure
that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond
the limits of national jurisdiction

b. Principle 15 of the Rio Declaration (a.k.a Precautionary Principle)

 In order to protect the environment, the precautionary approach shall be widely applied by States according to their
capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a
reason for postponing cost-effective measures to prevent environmental degradation.
a. Obligation to conduct environment impact assessment and notify and consult affected state if there is risk of
significant transboundary harm
Costa Rica vs Nicaragua

D. International Criminal Law

a. Rome Statute of the International Criminal Court (Take special mention to Art. 5 and 127)
Art. 5 Crimes within the jurisdiction of the Court
The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as
a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.
Article 127 Withdrawal
1. A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from
this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification
specifies a later date.
2. A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it
was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any
cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing
State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor
shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court
prior to the date on which the withdrawal became effective.